EMMANUEL THIERSAINT v. COMMISSIONER OF CORRECTION, SC 19134

Judicial District of Tolland

 

      Habeas; Ineffective Assistance of Counsel; Whether Principle Announced in Padilla v. Kentucky Applies Retroactively in State Habeas Proceedings; Whether Petitioner was Misadvised Regarding Immigration Consequences of Guilty Plea.  In 2007, the petitioner, a noncitizen, pleaded guilty to possession of narcotics with intent to sell.  Following the United States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010), which held that the sixth amendment requires a criminal defense attorney to advise a noncitizen client of the immigration consequences of his guilty plea, the petitioner brought this habeas action, claiming that his attorney rendered ineffective assistance in failing to advise him that he would be deported if he pleaded guilty.  The habeas court granted the petition, vacated the petitioner’s plea and conviction and remanded the case for further proceedings.  The court determined that Padilla applied retroactively because it did not announce a new rule and that the petitioner’s attorney failed to satisfy Padilla in that he did not advise the petitioner that it was “virtual certainty” that he would be deported as a result of his plea.  The habeas court also found that the petitioner was prejudiced by counsel’s deficient performance in that he demonstrated a reasonable probability that, but for his attorney’s errors, he would not have pleaded guilty and would have insisted on going to trial.  The state appeals, claiming the habeas court should not have given Padilla retroactive application.  The state points out that, following the habeas court’s judgment, the United States Supreme Court ruled in Chaidez v. United States that Padilla should not be applied to convictions that became final before that decision issued.  The petitioner responds that this court should find that, as a matter of state law, the principle expressed in Padilla applies retroactively to his conviction because Padilla did not announce a new rule for purposes of Connecticut jurisprudence.  Alternatively, if it is determined that Padilla does not have retroactive effect, the petitioner contends that his guilty plea was invalid because his attorney grossly misadvised him concerning the deportation consequences of that plea.